H-1B visa

The H-1B is a nonimmigrant classification used by an alien who will be employed temporarily in a specialty occupation or as a fashion model of distinguished merit and ability. Specialty occupation is defined as an occupation that requires highly specialized knowledge and at least a bachelor's degree in a related field. In certain cases, documented work experience may be accepted in lieu of a bachelor's degree.

A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor's degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

For thousands of American employers, the H-1B visa program is the primary method for bringing in professional level foreign employees. The visa has received media attention in recent years because Congress has set limits on the numbers of workers allowed in on H-1B visas.

The H1B work visa requires a sponsoring US employer. The sponsor must file a labor condition with the Department of Labor attesting to several items, including payment of prevailing wages for the position, a nd the working conditions offered. Once the wage information has been obtained, a Form ETA 9035 Labor Condition Application (LCA) must be submitted to the US Department of Labor. On this form, the employer must submit the wage to be paid, the prevailing wage, and must make certain attestations. The form is submitted by the web or by fax and the Department of Labor only reviews the form to make sure it is properly completed. For more information, see the Department of Labor's Foreign Labor Certification

The H1B employer must then file an I-129 petition with the US Citizenship and Immigration Services (USCIS, formerly Immigration and Naturalization Service). Based on the USCIS petition approval, the alien may apply for an H1B visa stamp at an American Embassy or Consulate abroad or a change of nonimmigrant status with the USCIS. An H1B visa stamp allows an alien holding that status to travel abroad and reenter the US during the validity period of the visa and approved petition. In an H-1B visa application, the US employer is called the petitioner and the foreign worker is called the beneficiary. After an offer of employment is made, the petition process begins. The first step is for the petitioner to ensure that the worker will be paid at least 95% of the prevailing wage paid to similarly employed workers in the geographic area where the beneficiary will be employed. The employer must also be sure that it is not paying less than the actual wage paid to its other employees with similar qualifications. The prevailing wage can be determined through a private wage survey or through a state Employment Security Agency. The benefit of relying on a state wage determination is that it cannot be challenged later by the US Department of Labor. On the other hand, state determinations are frequently not a close match to the job performed and are slow in being issued.

An alien may be admitted into the US in H1B work visa status initially for up to three years with possible extension for three more years. After six years in H1B status, an alien must remain outside the United States for one year before another H1B petition can be approved. H1B aliens may only work for the petitioning US employer and only in the H1B activities described in the petition.

H1B Quota - The law limits the number of H1B visas to 65,000 per year. Generally, the quota does not apply to H1B aliens filing for extension of status or change of employer. However, H1B aliens employed by quota exempt organizations, such as institutions of higher education or nonprofit research organizations, may become subject to the H1B quota, if they apply to change jobs to a non-exempt employer.

H1B Transfer - Under the portability provisions of the American Competitiveness in the 21st Century Act (AC21), an alien previously issued an H1B visa and/or granted H1B status may transfer to a new H1B job provided that the new employer has filed a non-frivolous petition (not without basis in law or fact) on behalf of the alien, and that the alien has not accrued unlawful presence in the US. In cases where the H1B petitions are denied following commencement of employment under the portability provisions, employment authorization of the H1B alien CEASES upon denial.

Due to the numerous H1B layoffs in recent times, employers must understand their obligations upon termination of H1B workers. Employers who dismiss their H1B employees before the end of the approved period of employment are required to pay the transportation cost of returning the aliens to their last place of foreign residence. If the H1B worker voluntarily terminates his or her employment prior to the expiration of the H1B status, then the employer is not liable for the alien's return transportation. The USCIS regulations also require the employer who no longer employs the H1B nonimmigrant to notify the USCIS of the termination in writing.